The science of Focus Groups in Jury Trial

Using focus groups to prepare for jury trial

Brigham Cluff talks about using focus groups to prepare for jury trials or settlements in Personal Injury Cases in Arizona.

Start Transcription of The Science of Focus Groups and Jury Trials

Hi this is Brigham Cluff. This is the fourth video in my series All About Arizona Juries, The Science of Focus Groups.

I’ve mentioned focus group a couple of times before earlier in this series, and focus groups really are an amazing thing. They have really changed the way that I practice law. You spend so much time as an attorney trying to figure out in your mind what would a jury do with this case, because that’s really what drives everything.

Sometimes at the early stages of the case a client will ask me, “Well do you think that my case will settle?” And I say, “Well the odds are that it probably will settle, most cases do settle.” “Well then why do you seem to be so focused on trial, and why are you always talking about what the jury would do if this case is going to settle.” The reason for that is that’s what drives the settlement. Both sides, the Plaintiff side, Defense side, they are asking themselves what is going to happen if we send this case to a jury.

Both of the sides to a case, all of the sides to a case, sometimes there’s more than two sides, are going to be driven in their negotiation strategy by the answer to that question. We spend a lot of time thinking about that, and we spend a lot of time talking about that. It’s important, that’s a really important part of the process. When I’m running a hypothetical by a friend of mine at lunch that’s actually me working on the case, because getting that opinion from other people is really important information for me.

However, that’s really not the ideal way to get opinions from other people, because this person is my friend. He wants to make me feel good. He doesn’t want to bring me down. Yeah, you’re doing a great job on your case, and you’re doing great. The jury’s going to love every part of the case. That’s sort of my friend’s natural inclination. What’s really helpful is to try to approximate a jury, because you don’t know the jury, they don’t know you. They’re not trying to make you feel good. They might even really like you very much, but you want to know what those people are going to think about your case.

The way you do that is by conducting focus groups. A focus group can be a really huge production, or it can be pretty simple. There are some advantages to doing a very expensive focus group, where you’re bringing in a large number of people, and you’re watching them deliberate in the one way glass. You’re listening in on the conversation, and that’s really great. It’s very expensive to do that, and sometimes that is the thing to do.

You can actually get most of the benefits of a focus group by doing something much more simple; by bringing a group of people together and buying some pizza and maybe you pay for some of their time to come and evaluate your case. When I do that I do it different ways. Sometimes I’ll let the focus group know where I’m coming from in a case. I’ll say here’s my case, here’s the evidence I’m going to put on, here’s the evidence the other side is going to put on. Maybe I’ll even introduce them to a couple of witnesses, show them some of the key evidence. Then get their feedback on it. It’s really helpful, valuable to get that feedback from them.

Sometimes I’ll do a focus group where I won’t let the jury know which side I’m on. I will argue both sides of the case just as passionately, and in fact, sometimes they think that I’m on the opposite side. I know; I’m so highly aware of the weaknesses in my own case that I’m able to attack right at those points. My focus will groups will see that, and they think you must be the defense attorney, right? No, I’m the plaintiff’s attorney, and that’s fantastic feedback too.

Sometimes I’ll bring in a focus group and I’ll have two attorneys there, me and another attorney, and we’ll both advocate for one side. Sometimes I’ll take my side, sometimes I’ll advocate for the other side. That feedback that you get from those members of the focus group is so valuable. It is something that you really cannot anticipate what some of that feedback is going to be without doing that focus group, you just wouldn’t identify it.

Let me put this into a real practical application. I was evaluating this case as being a million dollar case. I put together some focus groups, and when we would present the case to the focus groups, and we do that several different ways, all the ways I described earlier. What I was getting back from the jury was this case is around $350,000, and if we were on the jury we would award you $350,000. That’s kind of frustrating to me, because I kept thinking for all this time I’ve been working on the case that I think this about million dollar case.

When it came to settle that case I knew what a jury would do with that case. When the other side came offering me $400,000, even though personally I’d evaluated the case at a million dollars. I might have without having done the focus groups said, “$400,000 you’re crazy, and I’m taking this to trial. I’m going to get my million dollars.” Now I’d focus grouped that case enough times that I knew the juries were evaluating it at $350,000, so $400, 000 that was a fantastic settlement result for. We were able to get that case settled for more than what juries according to our focus groups would be awarding for that case.

By doing that, by going through those focus groups, we were able to settle that case faster than we could have if we had going through and taken it all the way to trial. We were able to get money for the client sooner, and the client also had a lot of confidence when we settled that case, that it was good decision. That we were making a really intelligent decision, we had done what we needed to do. The client was very happy, got the money then, didn’t have to wait for the case to go to trial, and could feel confident that we had made the right decision.

Please watch all of my videos in my series, All About Arizona Juries. I’d be happy to have feedback from you, and I’ll reply to any comments that I receive.